When an electoral system structurally discriminates against particular categories such as persons with disabilities, it is tantamount to a failure of the democracy as a whole

The citizens of India are in the process of casting their votes in what is being widely hailed as the largest election in human history. By sheer size, the 16th Lok Sabha elections signal a triumph not only for India, but for democratic exercises around the world.

However, more important than elections themselves are the principles of civil rights, equality, freedom of speech, and inclusivity that underpin any true democratic activity. When an electoral system structurally discriminates against particular categories of people, such as persons with disabilities, it is tantamount to a failure of democracy as a whole. While there have been Supreme Court orders to make electoral infrastructure more accessible for voters with disabilities, these measures do not go far enough. Looking beyond physical accessibility, substantive equality and full participation can only be achieved with a rights-based approach that values access to the public sphere and a robust protection of civil and voting rights for all citizens.

While the Census of India reported 21.9 million persons with disabilities in 2001, more recent estimates by the World Health Organization (WHO) and others put India’s disabled population at more than 80 million persons, and possibly as high as 150 million.

Numerous hurdles prevent voters with disabilities from full participation in the electoral process. Barriers range from the obvious, such as lack of access ramps and unavailability of voting mechanism for the hearing or sight impaired; to the more obscure, such as lack of accessible campaign material which results in a difficulty in making an informed decision.

Mental illness and suffrage

Lack of voting rights for persons with intellectual and psycho-social disabilities represents a particularly insidious barrier to electoral participation. The overarching framework, comprising qualifications and disqualifications for being a voter in the general and assembly elections, is outlined in Article 326 of the Constitution. It enshrines the value of universal adult suffrage and states that every person who is a citizen of India and of legal age has the right to vote, with a few exceptions.

One such exception is “unsoundness of mind.” Additionally, the Representation of People’s Act, 1951 (‘RP Act’) provides the procedural framework for elections in India and similarly disqualifies a person from being registered to vote if he or she is of “unsound mind”, and is found to be so by a “competent court”.

But what exactly is an “unsound mind”? The term is vague and undefined, and there is no objective criterion laid down to guide the “competent court” in determining what constitutes unsoundness of mind. Even if a person’s disability in no way interferes with his ability to understand the positions of candidates and to make a choice, he can be deprived of the right to vote under this legal framework.

Secrecy of voting

Voting is a political act of free expression, and as such should be done independently and in secrecy. The over-reliance on the “companionship” model to provide access for persons with disabilities is an infringement of this right.

In practice, voters with disabilities are often allowed to take a “companion”, with them, who is usually a family member, or a voting facility presiding officer, clerk, or agent, to physically assist them in voting. This policy, while typically upheld as a means for making electoral participation possible for persons with disabilities, fails to give voters their full right to vote by crucially depriving them of autonomy and secrecy.

Section 128 of the RP Act provides for the “Maintenance of secrecy of voting” and stipulates that no other elector should be allowed inside when an elector is inside the voting compartment. Secrecy and autonomy are key elements of the free expression of the will of the electorship.

The Electoral Commission of India, however, still refers to the Conduct of Elections Rules, 1961, which provides for “permitting a companion to accompany a blind/infirm elector to assist him/her to cast the vote.”

These rules are outdated and stem from a charity model of understanding disability and not from a rights-based model. The presence of another person in the voting booth, even if he is a friend or family member, opens the door to questions of influence, which infringes on the right for voters with disabilities to vote independently and in secrecy.

Violation of rights

By disenfranchising voters with disabilities and thus violating their fundamental right to voting and citizenship, we are undermining the foundations of our democracy. This is not just an issue for persons with disabilities or senior citizens; this is an issue for us all.

We can begin to address these problems by scrapping the “unsoundness of mind” exception, and tying any voter registration disqualification to the lack of specific cognitive abilities in making an informed electoral choice only when declared so by a competent court. Indeed, in some U.S. States, persons with developmental or mental disabilities are presumed competent to vote unless a court specifically determines otherwise.

We should also pursue the use of assistive and new technologies that would make voting accessible for persons with disabilities, to ensure secrecy and independence in voting. Taking physical accessibility of the voting site seriously by making building entrances, rooms, voting tables and Electronic Voting Machines (EVM) accessible would do away with voters with disabilities needing assistance. Policies in other jurisdictions categorise companion-assisted voting as a measure of last resort, and even when utilised, stipulate detailed rules regarding the selection of the companion, giving priority to the preference of the voter.

After the people have spoken and the votes have been counted, we must not forget the tens of millions who could not make their voices heard.

(The writers are with the Centre for Law and Policy Research, Bangalore)

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